It comes down to enforcement, at the end of the day. “Someone owns it, but determining that chain of title is often difficult. “If it was a real video game company - and the games people cared about were from real video game companies - someone bought those assets…out of bankruptcy,” Boyd explained.

Thus, downloading it from a ROM hosting site would be a form of copyright infringement. “There are no hard-and-fast categories, but you’re on somewhat safer ground there, especially if the game is no longer sold and there’s no easy way to get it in playable form,” Stoltz said.īut often, defunct companies’ assets are purchased, so even if the company no longer exists, some other firm may own the right to their game(s). In these cases, there’s a stronger claim for emulating to fall under fair use. One reason people may seek an emulated ROM game is because the company that made it no longer exists, making the title hard to find. “The nostalgic early video games are probably going to be under copyright until at least when their original players are in their 60s and 70s,” Boyd said. Plus, every 20-30 years copyright statutes are reevaluated. Things like where and when the game was made and who owns it are all factors. You can see how much situations vary here. Determining exactly how long a video game copyright can last is complicated, though.

Gregory Boyd, partner and co-chair of the Interactive Entertainment Group at Frankfurt Kurnit.

But Kane could not immediately think of any examples of companies doing this over emulated video games.Īnd if you’re waiting for some of the oldest games to enter the public domain, you’ll be waiting for a while - “decades, and decades and decades,” according to S. Kane noted, however, that there are companies that take these things “very seriously,” and there have been cases where companies sued individuals for downloading something, even if it was for non-commercial use. “I think it’d be rare and approaching never that they go after individual downloaders,” he said. Mitch Stoltz, senior staff attorney at Electronic Frontier Foundation, agreed that solitary gamers probably won’t be served by a company like Nintendo. “The reality of the situation is if you’re downloading it for personal use and you’re not commercializing it any way, a company may not ever find out that you’ve done that, or they might not care too much because it’s not necessarily hurting their bottom line that greatly if it’s just one individual,” Kane said. But should individual gamers/downloaders be worried about getting a summons? Probably not.

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